Alabama Advisory Opinions August 19, 1993: AGO 93-300 (August 19, 1993)

Advisory Opinion Text

Honorable DeWayne Freeman

Member, House of Representatives

Alabama State House

Montgomery, AL 36130-4600

Municipalities - City Councils - Term of Office -Municipal Elections

If an ordinance is adopted pursuant to Act No. 93-634, beginning with the mayor and council elected in 1996, all terms will run concurrently. Those persons elected in 1994 will serve only two-year terms.

Dear Representative Freeman:

This opinion is issued in response to your request for an opinion from the Attorney General.

QUESTIONS

1) Are all terms of office for City of Huntsville City Council members to be concurrent with the Mayor of the City of Huntsville, regardless of whether the Council adopts an ordinance increasing the number of single member districts?

2) Do the terms of office for Council Districts 2, 3, and 4 beginning in October 1994, conclude with the ending of the Mayor's term in September 1996? For example, will candidates for election to Districts 2, 3, and 4 be running for two-year or four-year terms?

FACTS AND ANALYSIS

We note from the outset that the City of Huntsville has been operating under the terms of a federal court order. We will offer our advice in the form of an opinion, but urge that any changes occurring by virtue of the passage of Acts of Alabama 1993, No. 93-634, be submitted to the federal court before implementation. We also note that this Act must receive preclearance from the Department of Justice of the United States.

Your request presents the following information:

The Alabama Legislature enacted and Governor Folsom signed House Bill 625 (Act No. 93-634) into law during the 1993 Regular Session. Act No. 93-634 revises the procedural requirements for increasing the number of city council districts in a Class 3 municipality.

Section 1 of Act No. 93-634 states, "All terms of office for city council members shall be concurrent with the mayor of the municipality."

Presently, the City of Huntsville elects its five council members using staggered terms. Council members from District 1 and District 5 serve terms concurrent with the mayor. Council members from Districts 2, 3, and 4 serve terms nonconcurrent with the mayor. For example, the Mayor, the District 1 and District 5 council members were elected in 1992. Council members from Districts 2, 3, and 4 were elected in 1990.

We turn to your first question. Act No. 93-634, Section 1, in pertinent part, states:

"... All terms of office for city council members shall be concurrent with the mayor of the municipality."

However, the entire thrust of the Act is to provide procedural requirements for increasing the number of city council districts in a Class 3 municipality by the enactment of an ordinance. Clearly, the other provisions of the Act are triggered only upon the adoption of the required ordinance, and we note that some Class 3 cities already have councils who do not serve staggered terms. We see this provision in Section 1 as one of clarification, if a change is made, rather than mandating such a change in all Class 3 municipalities where terms are currently staggered.

It is, therefore, the opinion of this office that unless and until such an ordinance is adopted, councilmembers in the City of Huntsville continue to serve staggered terms.

Your second question requires us to determine the meaning of the phrase, "prior to the regular general municipal election." Because officers of the City of Huntsville serve staggered terms, there is some question as to the date of the next regular general municipal election in Huntsville. We note, however, that Act No. 93-634 is an Act relating to all Class 3 municipalities and we, therefore, turn to the general municipal election laws for our answer. The "regular municipal elections in cities and towns," as set forth in Code of Alabama 1975, § 11-46-21, under which most municipalities operate, will be held in 1996. The Mayor of Huntsville will also be elected in 1996.

It is, therefore, the opinion of this office that "prior to the regular general municipal election" means the regular municipal elections provided for in Code of Alabama 1975, § 11-46-21.

Based upon this conclusion, terms of office for candidates for election in 1994 will be for two-year terms rather than four-year terms, if an ordinance is adopted under Act No. 93-634. We strongly suggest that if such an ordinance is to be adopted, it be done so that the 1994 elections will be conducted accordingly.

CONCLUSION

Act No. 93-634 does not require all terms of council members in Huntsville to run concurrently with that of the mayor unless and until an ordinance is adopted pursuant to that Act.

If an ordinance is adopted pursuant to Act No. 93-634, persons running in 1994 for council seats would serve two-year terms.

I hope this sufficiently answers your questions. If our office can be of further assistance, please do not hesitate to contact us.

Sincerely,

JIMMY EVANS Attorney General.

JAMES R. SOLOMON, JR., Chief.